The Columbus Dispatch recently reported on a growing trend among law enforcement to crack down on drivers operating vehicles while under the influence of drugs or other (legal or illegal) substances.
The article — “Going beyond sobriety tests, officers learning to gauge drug use” — discusses the issue of police officers throughout Ohio becoming certified as drug-recognition experts to help determine if and why a driver might be impaired. The drug recognition certifying program is used by police agencies to determine if drivers are behaviorally impaired because of drug use, and, if impaired, to determine the class or type of drug(s) causing the impairment.
The Drug Recognition and Classification Program (“DEC”) was originally developed by Los Angeles Police officers in 1979. 1n 1996, the National Highway Safety Administration published the NHTSA, Drug Evaluation and Classification Training Program, Student Manual (“DEC Manual”) and in 1987 developed a national standardized curriculum. In 1990, the International Association of Chiefs of Police became the national certifying agency for drug recognition experts (“DREs”).
In order to become certified, police officers — who the majority of the time have no formal scientific training — take a 72 hour course designed to teach them about how drugs affect the human body. They are taught a 12-step drug evaluation and classification protocol to administer on drivers suspected of impairment. The 12 steps, which take about an hour to complete, include:
1. A breath alcohol test
2. Interview of the arresting officer to find out what led to the arrest
3. A initial examination, asking questions about the drivers’ physical limitations
4. An eye exam, looking for dilated pupils, eye tracking, and Horizontal and Vertical Gaze Nystagmus (i.e. follow the officer’s finger)
5. Divided attention tests, i.e. stand on one leg, walk and turn, finger to nose
6. Vital signs exam, i.e. plug pressure, pulse, body temperature
7. Dark room exam, which examines pupil sized in various levels of darkness
8. Muscle tone exam, testing flexing of the muscles
9. Injection site exam, looking for any needle marks on the driver’s body
10. Taking the driver’s statement and general observation
11. The DRE then makes a determination based on all of these tests as to what class of drugs, if any, the driver has taken
12. This is followed by a blood, saliva or urine test to corroborate the expert’s opinion.
Ohio is the 48th state to add drug-recognition experts to the police force. Columbus police have four DREs on its staff. The DRE evaluates a driver after a stop, going through each of the 12 steps outlined above. The expert’s conclusions are another tool and another piece of evidence that the police and prosecution will then have in addition to urine and/or blood samples to use as evidence at trial.
Although widely used nationally, the validity of these “experts” has been and continues to be challenged. The Ohio Association of Criminal Defense Lawyers in fact made it the subject of its annual seminar this past March. Although drug recognition experts are new in Ohio, they have been utilized in other states for many years and there are a variety of ways in which their “expert” status has been challenged.
For example, reliability of the drug recognition expert (“DRE”) protocol has been repeatedly challenged in peer reviewed research, which indicates high rate of false positives and the misidentification of impairing drugs and substances.
Courts examining the issue appear to be split. One court in Maryland, for example, recently held that DRE evidence should be excluded, finding that identification and classification by DREs “is not generally accepted as valid and reliable in the relevant scientific community.” State of Maryland v. Charles David Brightful, et al, No. K-10-04-259, Circuit Court for Carroll County, MD March 5, 2012.
Although one court in Cincinnati has approved of DRE expert testimony, how other courts across Ohio will evaluate this “expert” testimony remains to be seen.
